I am going to be transferring web hosts for AzCommonLaw in the next week or so. The only real impact should be to those who subscribe to this site via email. I do not have access to the information to who has subscribed to receive updates via email to transfer it over. I am asking those who are interested to continue receiving updates via email to resubscribe in about a week or so when I get the site up and running on the new host.

I will post on this site when the switch has been complete, and users can resubscribe. I am guessing that the site will look a little bit different, too as did my CoCommonLaw blog did after the change. Some of the options available from my current host are not available on the new host, and vice versa.

I am excited and I hope to continue to have each of you as apart of this website in the future.

It is easy to see Phoenix Police Chief Daniel Garcia has trouble with his eyesight. The dark framed glasses line his face and aid his eyesight.

Glasses have not helped him see identify the mental health problems right in front of him during his tenure as Phoenix’s top cop.

Unlike other disabilities, mental health issues are invisible to the eye. Anyone who looks at Chief Garcia can identify his eyesight disability because of his glasses. Persons with mental health issues do not have that luxury. When people look at them there is no distinguishing characteristic of their disability. Instead people only see a seemingly normal individual. And that normal individual may not be given any accommodations, as no one may be aware of the disability.

Only weeks ago, vocal calls in the community led to the Phoenix PD to announce the establishment of a new mental health advisory board to help police with training methods when it comes to dealing individuals with mental health issues. The action only came after high profile mental health calls had mixed and sometimes troubling results. Perhaps the most troubling case was when the police on a mental health call, trying to get her to come in for treatment, killed the woman, whom they were there to help because she had a weapon and was making threats.

Now the calls are from within the Phoenix Police Department calling for Chief Garcia to resign for failing to recognize and support officers who have mental health issues. Phoenix Police Officer Craig Tiger committed suicide recently after losing his job over a DUI arrest, reports Fox10Phoenix. Officer Tiger had been diagnosed with Post Traumatic Stress Disorder (PTSD). He claimed an on-the-job shooting caused his PTSD, according to Fox10Phoenix. News reports state Chief Garcia ended up firing Officer Tiger over the DUI.

Chief Garcia did not see the invisible wound his police officer had.

Others in the community just do not see it either. The Arizona Republic’s Editorial Board argued the loss of Officer Tiger is incredibly sad, but it must not detract from the larger point that Chief Garcia is leading Phoenix PD towards integrity and respect from the community.

Perhaps, I must spell it out to the Arizona Republic’s Editorial Board. The issue is, how can we as a community expect the Phoenix Police to support persons with mental illness, if we do not support the police officers themselves who may be suffering from mental health problems. The police have a very difficult job and encounter hazards that can take an emotional toll and in turn create mental health problems.

A case straight out of Gilbert, Arizona will be heard by the United States Supreme Court later in this session (probably early 2015). The case will look at what is content-based speech for First Amendment purposes.

The Town of Gilbert created an ordinance that restricts the size, duration and location of temporary directional signs. The ordinance prohibited the erection of signs without a permit, but for three exceptions: temporary directional signs relating to a qualifying event, political signs, and ideological signs. Good News Church (that is the name of the church), rented space to meet in a local elementary school. For a while, the Church put out about seventeen signs around the area announcing the time and location of its services. The Town of Gilbert claimed the signs violated the sign ordinance’s time restrictions.

The issue is whether Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.

This should be a really interesting case to follow. I will write another article updating this topic after oral arguments.

For those who find this subject interesting, there is already some scholarly literature out on this case. Here is a recent article previewing the upcoming United States Supreme Court case.

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert’s sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit’s resistance to finding Gilbert’s ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine – that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn’t legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

Arizona is still dragging its feet at the thought of divulging its execution protocols — to anyone that asks. Different groups across the state, including the First Amendment Coalition of Arizona, are joining forces in an interesting lawsuit arguing there is a First Amendment right for both inmates and the public to know the execution protocol. This is a really interesting case from a public records and a constitutional perspective.

This lawsuit is a part of an on-going battle for states to reveal what methods are used in executions and arguing there is a right to know states’ execution protocols.

In recent years, states have had a difficult time procuring the drugs needed to carry out executions. Companies own morals and public protests deterred many domestic drug manufacturers from permitting their drugs to be used in executions. States either had to find new sources for the drugs or to find new ways to carry out the executions. See Wood v. Ryan, 759 F.3d 1076, 1101 (9th Cir. 2014).

For a while, Arizona illegally imported sodium thiopental from Great Britain. “Thiopental is a short-acting barbiturate that was used as part of a three-drug, lethal-injection cocktail. It served as anesthesia before a paralyzing drug and a heart-stopping drug were administered. But the sole U.S. supplier of thiopental stopped producing it in 2009 because it had largely been replaced in hospitals by more modern drugs.” Reported the AZ Republic. Arizona then turned to a manufacturer in Great Britain that was unauthorized to export the drug.

Adoption by same sex couples is just one area that may be impacted by the Majors ruling (which is based on the Latta v. Otter opinion), holds prohibitions on same sex marriages are unconstitutional.

Currently, Arizona law creates a preferences for a married man and woman for adoptions. “If all relevant factors are equal and the choice is between a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman.” Ariz. Rev. Stat. § 8-103(C).

Okay, let’s clarify real quick, “[a]ny adult resident of this state, whether married, unmarried or legally separated is eligible to qualify to adopt children.” Ariz. Rev. Stat. § 8-103(A). Although anyone can adopt a child, the “adoption agency shall place a child in an adoptive home” that is in the best interest of the child. Ariz. Rev. Stat. § 8-103(B). When signing Senate Bill 1188 into law in 2011, the Arizona Legislature directed state and private agencies to place children in adopted homes which are in the best interest of the child. But one of the potential factors gives preferential treatment to a married man and woman. The law very specifically mentions a preference for a married man and woman and not a married couple.

The legislative history and media reports at the time confirm the same type of equal protection concerns arise under the adoption law. “Conservative groups and other supporters of the measure said children should have every opportunity to grow up in a household with a mom and dad.” The AZ Republic reported in 2011 when the law changed to add a preference for a married couple. Furthermore, media report is corroborated by the official “House Summary, As Transmitted To The Governor.”

Now that courts have ruled Arizona laws prohibiting same sex marriages are found to violate the Fourteenth Amendment of the United States Constitution this could have a positive effect on same sex couples who choose to adopt.

Hopefully, the provision giving preference to married heterosexual couples will be changed legislatively or judicially, soon.

To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as
unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in ‘family values.’

The Phoenix Police Department is making serious strides in how it handles situations where individuals have mental health issues.

“The board, made up of mental health professionals, will help police with training methods when it comes to dealing with mentally ill cases, and include regular reviews of protocol.” According to reporting by ABC 15 News.

I am really proud of the Phoenix Police Department for making this first step and creating an advisory board. This is an example of the standard of professionalism set by the department. Accepting that more could be done, Phoenix police are actively engaging experts in the community in how to handle complex situations that involve individuals with mental health issues.

As I have argued in the past, on this website, I believe the Americans with Disabilities Act creates an affirmative duty for police to accommodate individuals with known mental health problems (it must be known to the police too). The task force could recommend what reasonable accommodations could be made by police officers during investigations.

Procedures and guidelines for police on mental health calls in Phoenix are less than clear from at least the public’s perspective. ABC 15 News did report in the article linked to above that on each mental health call performed by Phoenix police, an officer and a Sargent trained in crisis intervention are on hand. Presumably the crisis intervention training includes a mental health aspect — or at least I would hope so.

While many more mental health calls go on each day than are reported in the news, two high profile situations yielded very different results.

The use of deadly force during mental health calls by the Phoenix Police Department is still concerning to me. It is not clear if non-lethal options are available, and if so, are taught as a first option in the crisis intervention training. The news articles appear to only mention police use or potential use of guns. Perhaps this is just incomplete reporting by the local news media. On the other hand, I would like the advisory board and for Phoenix police to focus on non-lethal options. Of course there are times when lethal force is necessary to protect law enforcement and citizens, it should be a last resort in situations with known mental health issues.

Last week a judge struck down a same-sex marriage ban in Arizona on equal protection grounds. The ban was created by both state law and a state constitutional amendment. United States District Judge John Sedwick on Oct. 17, 2014 declared Ariz. Const. art. 30, § 1, Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) all violated federally protected constitutional rights. Majors v. Horne, No. 14-cv-00518 (D. Ariz. Oct. 17, 2014) (the full opinion is available at the bottom of this article).

But this was not the first time the state laws were challenged (the Arizona Constitutional Amendment was not created at the time). In 2003, the Arizona Court of Appeals unanimously found both Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) to be reasonable laws, and upheld them in the face of constitutional challenges. Standhardt v. Superior Court of Ariz.,77 P.3d 451 (Ariz. Ct. App. 2003) (holding Arizona’s statutory prohibition of same sex unions does not violate either the Arizona or United States Constitution). These are the same state laws Judge Sedwick ruled unconstitutional last week.

So what gives? What has changed so much in the past eleven years to warrant a complete reversal in judicial ideology? I am very happy for this civil rights victory for same sex couples.

How two unanimous courts could come to completely opposite viewpoints on the same set of laws, really interests me from a civil rights perspective. I want to delve into this really interesting situation and see what happened.

The United States Supreme Court held in Riley v. California that the police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.

It seems like the what is on the physical cell phone is just the root of the search and seizure issue. Many cell phones are connected to much more information than the physical device can hold. Extending the capacity to access documents, cloud storage can vastly increase what a cell phone has access to.

Acting as an extension of the physical cell phone, it is not completely clear what the Fourth Amendment search and seizure ramifications are.

Riley’s protection of cloud-based data for cell phone searches, however, does not address the broader question of whether information stored in the cloud is entitled to Fourth Amendment protection in other contexts. Indeed, the Court went out of its way to state that Riley did ‘not implicate the question [of] whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.’ The Court also distinguished the facts of Riley from those in Smith v. Maryland, one of the principal cases to apply the so-called “third-party doctrine.” The third-party doctrine, which provides that information voluntarily revealed to third parties is not protected by the Fourth Amendment, may pose the biggest obstacle to whether cloud-based data receives Fourth Amendment protection, since any data stored in the cloud is necessarily conveyed to third-party servers. Yet by sidestepping the third-party doctrine in Riley, the Court never had to address how the doctrine applies to private data stored across remote servers.

Nevertheless, while failing to explicitly afford Fourth Amendment protection to cloud-based data, Riley still provides the best evidence yet that the Court may be ready to reconsider the third-party doctrine and to recognize Fourth Amendment protection for personal data stored in the cloud.

It appears that Phoenix Police Department uses predictive analytics, as at least a tool to aid them in policing the sixth most populous city in the United States. My Open Records request with the Phoenix Police Department is pending, without a timetable for completion. While we wait, I think it is appropriate to look at what we do know about predictive policing.

Predictive Policing

There is not a whole lot of academic information on predictive policing, in part because predictive analytics is such a young field in and of itself.

Probably the best definition I could find of this mysterious topic came from the RAND Corporation, a non-profit global policy think tank.

Phoenix police handled a very difficult situation where a man who suffers from schizophrenia wanted to harm others. According to the ABC 15 News reporting.

At one point, the man had a knife and lunged at an officer. It is reported the police officer drew his gun and thought about using it to protect himself, he ultimately did not use it. The situation was diffused and the man was taken in for a psychiatric evaluation.

I cannot analyze or share with the readers Section 9.7.3.F because it is restricted in the copy Operation Orders I have. As this topic is in the news a few times recently, I will file an public records request and see if I can get access to this particular provision and shed some light on how Phoenix Police are expected to dealt with mental health calls.

It is important to note, once again, the Phoenix Police estimate they serve ten mental health calls a day. It appears the vast majority of these are handled successfully without incident, such as the present case. The police are put in a very complex and potentially very dangerous situation when dealing with mental health calls.

One residual thought I have from both incidents is why are guns only mentioned as weapons the police used or considered? It is curious that non-lethal options are not mentioned. It is not clear from the news articles if non-lethal means were available or used. The Operation Orders should be able to provide a clearer picture about this. And I hope it is a question that can be answered.

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